What happened
In April 1990, “Kerry” was hired as a parole officer by the New York State Division of Parole. In February 2005, “Shannon,” a female area supervisor, was transferred to oversee the Queens, New York, office where Kerry worked.
Kerry alleged that on three occasions between mid-April and mid-September 2005, Shannon sexually harassed her by brushing up against her breasts and/or touching her breasts. Kerry, who backed away to refuse the advances, maintained that Shannon never apologized for her conduct.
The first incident occurred on April 19, while Kerry was in Shannon’s office reviewing a transfer list. Kerry said she was so “totally thrown off” by Shannon’s conduct that she spilled water all over the transfer list.
On June 16, while Kerry and another parole officer were talking in a hallway, Shannon allegedly approached Kerry, touched her breasts again, and rubbed up against her breasts.
As a result of these incidents, Kerry became uncomfortable around Shannon and avoided her “at all costs.” Kerry complained to her immediate supervisor. However, because Shannon was head of the Queens office, Kerry said she had no other choice but to comply when she was repeatedly summoned to Shannon’s office.
The third incident occurred on September 15 when Kerry was sitting at a computer in a secretarial area attempting to input information using a new procedure. Although she did not ask for Shannon’s help, Shannon approached Kerry, “reached over and touched and brushed up against [Kerry’s] breast.”
Kerry was reluctant to complain about Shannon’s conduct because she feared being labeled as someone who could not work with others. When she did complain to the HR director, no action was taken. However, Kerry received a disciplinary suspension on September 16, 2005. An arbitrator ordered her reinstatement in 2006.
Kerry filed suit against the Division of Parole, alleging disparate treatment based on race and gender, retaliation, and sexual harassment in violation of Title VII of the Civil Rights Act of 1964. Shannon testified that she never touched Kerry inappropriately or sexually harassed her, and the HR director said he did not recall ever receiving a written sexual harassment complaint from Kerry about Shannon.
The district court dismissed Kerry’s complaint, concluding that the supervisor’s alleged touching of Kerry’s breasts were minor and incidental, were episodic, may have been accidental, and did not occur because of Kerry’s sex. Kerry appealed to the U.S. Court of Appeals for the 2nd District, which covers New York, Vermont, and Connecticut.
What the court said
On appeal, Kerry argued that the supervisor’s unwelcome touches were sufficiently abusive to support her hostile work environment claim and that summary judgment was inappropriate because there were genuine issues of fact to be tried. The appeals court agreed, vacated the judgment, and remanded the case for further proceedings.
According to the appeals court, the district court did not view the record in the light most favorable to Kerry, as it was required to do. “The repeated touching of intimate parts of an unconsenting employee’s body is by its nature severely intrusive and cannot properly be characterized as abuse that is ‘minor.’ This is not a manner in which women ‘routinely interact’…; and it is not conduct that is normal for the workplace.”
The court said a jury could infer that Shannon’s repeated touching of Kerry’s breasts constituted intolerable discrimination against Kerry because of her sex. “Courts and juries have found the inference of discrimination easy to draw in most male-female sexual harassment situations, because the challenged conduct typically involves explicit or implicit proposals of sexual activity; it is reasonable to assume those proposals would not have been made to someone of the same sex,” the court explained.
“The same chain of inference would be available to a plaintiff alleging same-sex harassment, if there were credible evidence that the harasser was homosexual. But harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex.
“A trier of fact might reasonably find such discrimination, for example, if a female victim is harassed in such sex-specific and derogatory terms by another woman as to make it clear that the harasser is motivated by general hostility to the presence of women in the workplace. A same-sex harassment plaintiff may also, of course, offer direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace.”
Reed v. New York Division of Parole (No. 10-1410-cv) (U.S. Court of Appeals, 2nd Cir., 5/4/12)
In Brief
Employers have a vested interest in training their supervisors and managers about sexual harassment. “An employer is presumptively liable for sexual harassment in violation of Title VII if the plaintiff was harassed not by a mere coworker but by someone with supervisory (or successively higher) authority over the plaintiff, although in certain circumstances an affirmative defense may be available,” the court said.